International law's mixed heritage: a common/civil law jurisdiction.

• Author: Picker, Colin B.

ABSTRACT

This Article provides the first application of the emerging mixed jurisdiction jurisprudence to a comparative analysis of international law. Such a comparative law analysis is important today as the growth and increasing vitality of international juridical, administrative and legislative institutions is placing demands on international law not previously experienced. International law is unsure where to look for help in coping with these new stresses. In significant part this isolation can be attributed to a general view among international law scholars that international law is sui generis, and hence there is little to be gained from national legal systems. This Article seeks to rectify this problem by showing substantial congruence between international law and those national legal systems that may share many characteristics. The Article argues that those states that fit best with international law are those that have been classified as mixed jurisdictions. The result of this showing will be to open international law to the lessons leaned over the centuries by such mixed jurisdictions as Scotland, Louisiana, Quebec, South Africa and Israel.

TABLE OF CONTENTS I. INTRODUCTION II. ATTACKING THE CONVENTIONAL WISDOM A. The Diminishing Uniqueness of International Law B. Legal Traditions and International Law 1. International Law Is Part of the Western Legal Tradition 2. Does International Law Belong to One of the Sub-Traditions Within the Western Legal Tradition? III. MIXED JURISDICTIONS AND INTERNATIONAL LAW A. The Mixed Jurisdiction B. International Law and the Overarching Characteristics of Mixed Jurisdictions 1. The Civil Law and Common Law Are the "Basic Building Blocks" of International Law 2. It Is Objectively Apparent That International Law Has a Dual Character a. International Law Is a Dual System i. Example 1: International Law Sources Exhibit Dual Characteristics ii. Example 2: Dual Common and Civil Law Styles of the International Law Judiciary b. The Dual System Is Objectively Apparent 3. Common Law Public Law, Civil Law Private Law C. Specific Characteristics of Mixed Jurisdictions 1. Similar Genesis of the Mix 2. Similar Judicial Character 3. Similar Linguistic Issues 4. Precedent and Legal Sources in Mixed Jurisdictions 5. The Common Law's Reception in Mixed Jurisdictions 6. Reception of Anglo-American Procedure 7. Mixed Jurisdictions' Common Law Commercial Law D. International Law Is Akin to a Mixed Jurisdiction IV. CONCLUSIONS: THE BENEFITS OF THIS COMPARATIVE EXAMINATION I. INTRODUCTION

International law is supposedly unlike other legal systems. By conventional wisdom, it is sui generis--unique. (1) Conventional wisdom, however, should always be challenged; for even if it turns out to be accurate, the confrontation will improve our understanding and knowledge, supporting or further refining the basis for that so-called wisdom. An investigation into the uniqueness of international law and the findings from that investigation fall into the field of comparative law, which considers the characteristics of legal systems as a whole. (2)

Comparative scholars often analyze specific issues within international law but have performed little to no comparative analysis of international law as a whole. (3) This is not to belittle these previous and very important contributions to international law, but rather to suggest that the subject has been approached piecemeal and not as a whole. In part, this may be because most international law scholars are not comparatists; rather, most comparatists study domestic legal systems, primarily their private law dimensions, and not the international legal system as a whole. (4) Additionally, to the extent that some insightful historic considerations of this issue exist, they have been rendered incomplete due to significant developments within international law during the last half century. (5)

Of course, a comparative analysis presupposes that international law fits into one of the traditional legal families and can legitimately be analyzed under the same rubric typically applied to national legal systems. Indeed, one reason this examination has not previously been undertaken is, as mentioned above, that international law has been considered to be sui generis, and, therefore, the lessons of the many legal systems around the world were simply not thought to be applicable to international law. (6) But, as this Article argues, if one applies the comparative tools developed for domestic legal analysis to international law--properly understood and with its characteristics and nature laid bare--one might be able to classify international law. Based on this classification, one could apply lessons from comparable legal systems to make the international legal system and its institutions function better. This Article argues that the systems most suitable as sources of such comparative legal analysis are the "mixed jurisdictions," including, among many others, Louisiana, Scotland, and Quebec. (7)

The benefits that may be gained from such a holistic comparative examination of international law must, however, be weighed against the problems inherent in an inevitably generalized analysis. This is a particularly acute concern because international law is a diffuse legal system. International law, unlike domestic law, is not propagated from one central body and often not even from related or connected bodies. (8) Additionally, different nations and their international legal practitioners and scholars often do not view international law the same way--there may be few common reference points among the many international jurists. (9) Not surprisingly, and further compounding the problem, distinct domestic legal systems often apply international law differently. (10) Still, despite all these differences, there is enough consistency and uniformity in different bodies' application and interpretation of international law to identify and explicate the nature of international law.

This is more than an academic exercise. The consequences of failing to understand the nature of international law, and thus the inevitable importation of different common law and civil law substantive and procedural devices to solve novel problems under international law, are significant. While explored in greater detail throughout this Article, a few examples here will set up the subsequent discussion.

An initial and timely example of the consequences of marching forward blindly in international law can be seen in the development and operation of the International Criminal Court (ICC). While it is still too early to know if the mix of legal traditions in the ICC will be problematic, the operation of previous international criminal tribunals suggests that difficult issues will arise. For example, the International Criminal Tribunal for the former Yugoslavia (ICTY) mixed the common and civil law power distributions between prosecutors and judges in such a way that each system's protections against prosecutorial and judicial abuse are largely absent in the mixed system. (11) Furthermore, lessons from earlier tribunals suggest that the mixture of different legal traditions in the ICC will prove awkward for defense counsel, with all that implies for the accused, unless the defense counsel is accustomed to practicing in such a mixed jurisdiction. (12) Thus, the merger of the two traditions in the ICC may have an impact on the justice afforded the accused, and, consequently, that afforded victims and humanity in general. (13)

Nor is it only institutional and procedural issues that may be understood and improved by considering the nature of international law, but substantive international legal issues also. It has been suggested that the common law and civil law approaches to interpretation produce conflicting understandings of the substantive obligations of international law. (14) For example, one explanation for the difference between the U.S. and the European and Latin American perspectives on the legality of the U.S. Helms-Burton law is rooted in the "distinct reasoning techniques, different rules of statutory construction, and inconsistent legal doctrines concerning the territorial application of national legislation." (15)

Another substantive example relates to the Convention on Contracts for the International Sale of Goods (CISG). (16) The CISG provides that national courts should interpret and apply it similarly around the world. (17) However, signatories frequently interpret the treaty differently. (18) While there may be a variety of reasons for the differences, perhaps one of the most important is that the civil and common law jurisdictions have different perspectives as well as different approaches to interpretation. (19) These differences in interpretation and application may result from the different sources employed by judges in the two traditions to resolve CISG issues and even from the vastly different forms and styles of judges' written opinions. (20)

It has even been suggested that states' legal responses to international crises can be traced in significant part to the differences in their legal traditions. (21) For example, the different approaches taken by the United States and France to Iraq's alleged development and possession of weapons of mass destruction may be explained in part by their different legal traditions. (22)

In addition to a better understanding of States' different positions on international legal issues, the further benefits of comparative analysis are likely to be tremendous. They include improving the workings of international institutions, drafting treaties that better reflect the realities of international law, and providing guidance to international arbiters faced with conflicting demands of counsel from different legal systems. At present, international law develops largely without regard for the consequences of its relationship to the common and civil law...